Since the nineteenth century, judges have recognized deportation as a penalty “beyond all reason in its severity.”
In Fong Yue Ting v. United States, the Chinese immigrant plaintiffs allegedly failed to obtain certificates of residence required for lawful presence under section 6 of the Chinese Exclusion Act of 1892, rendering them deportable.
Justice Stephen Johnson Field argued in dissent that “neglect to obtain a certificate of residence” hardly warranted forced expulsion without indictment and trial.
Such a punishment involves removal from one’s place of residence and the “breaking up of all the relations of friendship, family, and business there contracted.”
Like Justice Field, immigration law scholars have long bemoaned the cruelty of “the deportation state,”
focusing specifically on immigration law’s overreliance on deportation and the resulting disproportionality in many cases.
The black letter law of the Immigration and Nationality Act (INA) specifies deportation as the sanction for nearly all transgressions of immigration law, no matter how minor, and regardless of the personal circumstances of the immigrant.
In failing to recognize that deportation lacks adequate justification in many cases, the criticism goes, immigration law contemplates life sentences for the proverbial parking violation.
Critics have often pressed analogies to criminal law, arguing that some deportable immigrants warrant penalties short of deportation:
Just as those convicted of crimes must receive proportionate sentences in some cases under the Eighth Amendment, deportation is unwarranted in at least some immigration cases.
Although criminal procedure offers a model for protecting targets of enforcement from civil liberties violations,
analogies to criminal law have foundered conceptually and in the courts. Conceptually, criminal law does not offer a compelling example of proportionality.
Legislatures retain vast discretion to punish felonies with lengthy terms of imprisonment, and proportionality in criminal law has limited traction outside of capital punishment and life sentences without parole.
As the jurisprudence stands today, the Eighth Amendment offers a weak, inadequate check on disproportionate punishment, underscored by rampant overpunishment and overcriminalization.
Federal courts have also roundly rejected efforts to apply constitutional proportionality doctrines to removal orders. Courts have specifically rejected application of the Eighth Amendment to removal orders, instead affirming immigration law’s “civil” rather than “criminal” character,
notwithstanding recognition of the overlap.
Courts have similarly rejected applying the Fifth Amendment Due Process Clause’s proportionality rule for punitive damages to removal orders.
At the end of the day, efforts to apply constitutional proportionality doctrines in immigration law have reached a dead end.
This Article takes a different approach to the INA’s failure to meaningfully distinguish among deportable immigrants. Rather than pressing constitutional proportionality doctrines or analogies to criminal law, it looks inward to the apparatus of the immigration bureaucracy by examining the many informal, discretionary tools that bureaucrats use to show lenience. These tools include deferred action, administrative closure, and orders of supervision, all of which defer the issuance or execution of a removal order, sometimes indefinitely.
These tools comprise a system of shadow sanctions,
one that remains largely unregulated and hidden from public view.
Most noncitizens likely lack any knowledge of what these shadow sanctions are, how to apply for them, or the standards by which the government imposes them.
Public data about the use of these tools are also limited, save for occasional Freedom of Information Act (FOIA) requests.
As evidenced by this lack of openness and consistency—key values traditionally associated with the law—the system of shadow sanctions suffers from serious rule of law deficits.
Rather than requiring bureaucrats to make reasoned, consistent, and nonarbitrary judgments when distinguishing among deportable immigrants,
the system of shadow sanctions creates a zone of unregulated agency discretion.
Structuring, constraining, and checking agency discretion is a core project of administrative law.
This Article argues for putting administrative law’s doctrinal and conceptual resources to use in mitigating the flaws of the shadow system. Looking to agency practices in other areas of regulation as well as the example of the European Union, this Article argues for specific prudential reforms to promote reasoned immigration administration.
Reasoned administration serves as a necessary foundation for, but does not equal, proportionality.
As discussed below, there are many conceptions of proportionality. The immigration law literature has generally taken proportionality to mean that the severity of a penalty should track the severity of the offense and should consider noncitizens’ particular circumstances, such as their length of residence in the United States. This Article argues for sanctions better tailored to these considerations and highlights the role of reason giving in attaining this objective.